U.S. v. Weiland

• Decision Date: 25 March 2002
• Docket Number: No. 01-1655.,01-1655.
• Citation: 284 F.3d 878
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jason M. WEILAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F.3d 878

UNITED STATES of America, Plaintiff-Appellant, v. Jason M. WEILAND, Defendant-Appellee.

No. 01-1655.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2001.

Filed: March 25, 2002.

Daniel C. Tvedt, Asst. U.S. Atty., argued, Cedar Rapids, IA, for appellant.

John F. Broz, argued, Cedar Rapids, IA, for appellee.

Before McMILLIAN and MURPHY,

Circuit Judges, and BATTEY,¹ District Judge.

MURPHY, Circuit Judge.

Jason M. Weiland pled guilty to being a user of controlled substances in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2), and to conspiracy to distribute methamphetamine, cocaine, LSD, psilocin mushrooms, and marijuana, in violation of 21 U.S.C. § 846. The district court² sentenced him to 80 months imprisonment on each count, to be served concurrently. The government appeals, arguing that Weiland's 1998 conviction for marijuana possession should have been counted in his criminal history score rather than as relevant conduct to the conspiracy. We affirm.

The conspiracy to which Weiland pled was alleged to have taken place "between about 1996 and 1999." In 1998 and 2000 Weiland was convicted of two state drug offenses for conduct that occurred during the time frame of the conspiracy. In 1998 he was convicted of marijuana possession resulting from a June 1997 search of his apartment. The affidavit in support of the warrant for that search stated that a confidential informant had seen the following in Weiland's apartment: four pounds of cocaine powder, five ounces of methamphetamine, LSD, steroids, a digital scale, razor blades, and baggies. The affidavit also reported the informant's statement that he had been involved for three years in the distribution of LSD, methamphetamine, cocaine, and marijuana and that Weiland was the source of his drugs. In their search of Weiland's apartment, officers found small amounts of marijuana and methamphetamine, lines of cocaine on a mirror, a hand held scale, several new plastic vials, $1809 in cash, and firearms. Weiland was arrested and charged with possession of cocaine, methamphetamine, and marijuana. Two of the three charges were dismissed, and Weiland was convicted in 1998 on the marijuana charge. In the fall of 1999, the same officer who had prepared the 1997 search warrant submitted another application to search Weiland's residence. In the new affidavit the officer repeated statements of the confidential informant from the 1997 affidavit and listed the contraband seized in the earlier search. When the new warrant was executed at Weiland's residence in October 1999, officers found methamphetamine, items used to manufacture methamphetamine, and seven guns. Weiland was thereafter convicted in 2000 of possession and manufacture of methamphetamine in violation of Iowa law.

Subsequently, federal charges were brought in the Northern District of Iowa. Weiland was indicted for violating federal firearms laws based on the guns seized by Iowa authorities in 1999, and he was later charged by information with conspiracy to distribute methamphetamine, cocaine, LSD, psilocin mushrooms, and marijuana in violation of 21 U.S.C. § 846. As part of a plea agreement, Weiland stipulated that he had knowingly and intentionally distributed those five drugs in the Dubuque area "between about 1996 and 1999." Weiland pled guilty to both the federal indictment and the information, and he was sentenced under the United States Sentencing Guidelines (USSG).

The presentence investigation report had calculated Weiland's total offense level at 27 with a criminal history category of I. The probation officer did not assign any criminal history points for Weiland's 1998 or 2000 Iowa convictions because the defendant's conduct in each case was "directly related to the instant offense."³ Weiland did receive one criminal history point for a July 14, 2000 Wisconsin conviction for possession with intent to deliver amphetamine where the conduct was alleged to have occurred at a time after the charged conspiracy. Weiland's resulting guidelines range was computed by the court to be 70 to 87 months. At sentencing, the district court found that Weiland's 1998 conviction was relevant conduct because it was within the time frame of the charged conspiracy, the probable cause evidence used to support the 1997 search was later used as part of the evidence for the conspiracy, and the possession charge involved one of the drugs alleged to be distributed by the conspiracy. The district court sentenced Weiland to concurrent 80 month terms.

On its appeal the government argues that the district court erred by not counting the 1998 Iowa marijuana conviction as part of Weiland's criminal history. It complains that treating this offense as relevant conduct gave Weiland three fewer criminal history points than he deserved. It believes he should have received one additional point for that offense and two for engaging in the conspiracy while on probation for the 1998 conviction. United States Sentencing Commission, Guidelines Manual, § 4A1.1(d) (Nov.2000). This would have given him a total of four criminal history points, placing him in criminal history category III with a guidelines range of 87 to 108 months. See USSG § 4A1.1(c)-(d).

Weiland argues that the 1998 conviction was relevant conduct because it was related to his conviction for conspiracy. He observes that there is both geographical and temporal proximity between his 1998 conviction and the conspiracy. Both occurred in Dubuque, Iowa, and the 1998 conviction was within the time frame of the conspiracy. Weiland also points out that both prosecutions were by the Dubuque Drug Task Force and both search warrant applications for his residence were prepared by the same officer. The conspiracy charge also includes drugs — methamphetamine, cocaine, marijuana and LSD — connected with the 1997 search and the affidavit in support of that search.

To resolve this appeal, we must start with the guideline provisions on criminal history and relevant conduct. Key to the analysis is determining what conduct fell within Weiland's "instant offense." The guidelines direct courts to count any previous sentence in calculating a defendant's criminal history, as long as the sentence was not for conduct that is "part of the instant offense." USSG § 4A1.2(a)(1). Relevant conduct is defined as "[c]onduct that is part of the instant offense," USSG § 4A1.2, comment. (n.1), and includes "all acts ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." USSG § 1B1.3(a)(1). Relevant conduct is not to be counted in calculating a defendant's criminal history. USSG § 4A1.2, comment. (n.1).

Conduct underlying a prior conviction is not relevant to the instant offense if the former conviction was a "severable, distinct offense" from the latter. United States v. Davidson, 195 F.3d 402, 409 (8th Cir.1999), cert. denied, 528 U.S 1180, 120 S.Ct. 1218, 145 L.Ed.2d 1118 (2000) (quoting United States v. Blumberg, 961 F.2d 787, 792 (8th Cir.1992)). Several factors are used to judge whether a prior conviction represents a "severable, distinct offense," including whether there was temporal and geographical proximity, a common scheme or plan, or common victims. Davidson, 195 F.3d at 409.

The determination that Weiland's 1998 conviction was relevant conduct involved a fact intensive inquiry, and we recognize the district court's sentencing expertise and greater familiarity with the factual record. Buford v. United States, 532 U.S. 59, 65-66, 121 S.Ct. 1276, 149 L.Ed.2d 197 (2001); Koon v. United States, 518 U.S. 81, 97-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). When application of the guidelines involves mixed questions of fact and law, an abuse of discretion standard of review is used. Koon, 518 U.S. at 100, 116 S.Ct. 2035. A district court abuses its discretion when it makes an error of law or a clearly erroneous assessment of the evidence. Id.; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).

The government contends that personal use drugs are not relevant conduct for conspiracy to distribute cases. It cites in support United States v. Fraser, 243 F.3d 473, 474-76 (8th Cir.2001), a case in which we held that drugs that had been acquired for personal consumption were not relevant conduct because they were not within "the common scheme or plan" of selling, giving, or passing drugs to another. The government asks that the reasoning in Fraser, a possession with intent to distribute case, be extended to conspiracy to distribute cases. It argues that convictions involving personal use drugs should not be considered relevant conduct in a conspiracy case.

We note that Fraser itself distinguished conspiracy cases from those dealing with possession with intent to distribute, finding "an important distinction" in respect to sentencing. Id. at 475. In...